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Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

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secret.simon
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Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by secret.simon » Tue Jul 24, 2018 11:43 pm

Statement of changes in Immigration Rules

New statement of changes to the Immigration Rules: CM 9675
Appendix EU comes into force on 28 August, but only for applicants from 15 hospitals and universities in the north west of England. They are the guinea pigs. The application system is being tested over the coming months and the Home Office expects it to be fully open in time for nominal Brexit in March 2019....
Couple of quick obversations.
a) The Surinder Singh route route seems to be included, but I can't find any reference to an equivalent for the Zambrano/Chen Derivative Rights route.
b) The Appendix is written in a manner as to be a standalone part of the law, inspite of being nominally a part of the Immigration Rules. It has its own definitions. And any Immigration Rules conflicting with them are disapplied for applications made under this Appendix.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

mufc69
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by mufc69 » Thu Jul 26, 2018 6:25 pm

Will Surrinder Singh also be included in the EU settlement Scheme which will be online later this year ?

Richard W
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by Richard W » Fri Jul 27, 2018 12:53 am

mufc69 wrote:
Thu Jul 26, 2018 6:25 pm
Will Surrinder Singh also be included in the EU settlement Scheme which will be online later this year ?
Yes, as Secret Simon said above. It's already included in the Chapter EU.

mufc69
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by mufc69 » Fri Jul 27, 2018 1:59 pm

That’s great news 👍🏼

Richard W
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by Richard W » Fri Aug 03, 2018 5:57 pm

Having looked at the trial immigration rules in more detail, there are several notable omissions in the rules. It is noteworthy that the rules distinguish between having a valid PRC or DCPR issued in the past 10 years and merely having permanent residence. Although a DCPR is supposed to be valid indefinitely, the rules treat them as being valid for only 10 years. A valid PRC or DCPR qualifies one for indefinite leave to remain under Appendix EU. (It should become superior to other forms of ILR, which is why EU citizens will be able to upgrade from ordinary ILR to ILR under Appendix EU.)

Four categories of holders of permanent residence should apply for a DCPR or PRC if they do not have one that will be valid for a few years to come.

1. EU citizens whose EU citizenship may (effectively) expire in the next few years. Danish citizenship can expire, and once the UK has left the EU, I believe some Dutchmen resident in the UK could lose their Dutch citizenship. (The latter loss might take 10 years to start - I don't know the details.)

2. Non-EU nationals holding PR dependent on their formerly retaining a right of residence as a former extended family member or former family member other than a spouse when they ceased to be a family member because of a divorce. While one can argue that EEA Regulation 10(5) is to be read as including stepchildren etc. of the EEA national, I don't see how one can extend that reading to sub-paragraph (d) of the definition of a "family member who has retained the right of residence" in the forthcoming Appendix EU. Granting leave to remain to those who had a retained right of residence is a concession,* not a proposed treaty obligation.

3. Non-EU beneficiaries of Surinder Singh. Many will fall foul of EEA Regulation 9(4). Regulation 9(4)(a) excludes those who deliberately set about obtaining Surinder Singh rights; Regulation 9(4)(b) excludes any who obtained the right as extended family members. I suggest it may be prudent to challenge the regulations while the UK is still issuing PRCs. While Regulation 9(4)(a) and probably also Regulation 9(4)(b) are contrary to EU law, granting leave to remain to beneficiaries of Surinder Singh is also a concession.*

4. Non-EU EEA citizens. After careful reading, I have concluded that, for example, a former family member of a 'qualifying British citizen' can also qualify for leave under new Rule EU11. Thus, I see nothing to stop a Norwegian qualifying for ILR by virtue of his DCPR, even though, so far as I am aware, no relevant deal has yet been provisionally agreed with Norway.

*I believe it will be a treaty obligation in at least some case where the current right holder is also the family member of an EU national, e.g. by marrying an EU national who retains his old treaty rights.

Daniann
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by Daniann » Sat Aug 04, 2018 9:07 am

Hi Richard W,
Me ( non EU) and my wife (EU ) both hold PR , what my position if we get divorced ? Can I exchange my PR into ILR as Appendix EU 11?
The only thing make me confessed that within appendix EU 11 it’s say :
(EU11. The applicant meets the eligibility requirements for indefinite leave to remain as a relevant EU citizen or their family member where the decision-maker is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met) .
The confusing thing is even if I am already hold PR , since 2016 and we get divorced in 2018 it’s mean am not family member of EU any more ..!!!
What’s your openion ?

Richard W
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by Richard W » Sat Aug 04, 2018 9:33 pm

Daniann wrote:
Sat Aug 04, 2018 9:07 am
Hi Richard W,
Me ( non EU) and my wife (EU ) both hold PR , what my position if we get divorced ? Can I exchange my PR into ILR as Appendix EU 11?
The only thing make me confessed that within appendix EU 11 it’s say :
(EU11. The applicant meets the eligibility requirements for indefinite leave to remain as a relevant EU citizen or their family member where the decision-maker is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met) .
The confusing thing is even if I am already hold PR , since 2016 and we get divorced in 2018 it’s mean am not family member of EU any more ..!!!
What’s your openion ?
In your case, I would expect that you have a recent PRC and thereby satisfy Condition 1.

Secondly, if you neglected to obtain a PRC, then it is highly likely you would still satisfy Condition 3 even after a divorce:
The applicant is (a) a relevant EU citizen, (b) a family member of a relevant EU citizen
or (c) a family member who has retained the right of residence, and has completed a continuous qualifying period of five years in any (or any combination) of those categories and since then no supervening event has occurred.
The key point is the definition of a "family member of a relevant EU citizen":
a person who has satisfied the decision-maker, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
(a) the spouse or civil partner of a relevant EU citizen, and:
(i) the marriage was contracted or the civil partnership was formed before the specified date; or ...
Note the word 'were' which I have italicised. The term family member includes former family members! It is important to study the definitions of the terms; most of the detailed requirements are in those definitions.

Daniann
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by Daniann » Sat Aug 04, 2018 9:58 pm

Hi Richard W
As I explain I have already Permenant resident card ( biometric one ) issued on 2016 .
According to my understanding to your reply , even if me and my EU wife get divorced now or any time from now I still can exchange the PR into ILR in the future ?
I am correct ?

Richard W
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by Richard W » Sat Aug 04, 2018 11:47 pm

Daniann wrote:
Sat Aug 04, 2018 9:58 pm
As I explain I have already Permenant resident card ( biometric one ) issued on 2016 .
No you didn't, you merely said that you acquired PR.
Daniann wrote:
Sat Aug 04, 2018 9:58 pm
According to my understanding to your reply , even if me and my EU wife get divorced now or any time from now I still can exchange the PR into ILR in the future ?
Correct, divorce would be no impediment with the current form of the EU immigration rules. However, there is only a moral obligation for this continue to be so; there is no proposed treaty obligation.

secret.simon
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Re: Appendix EU: Incorporating the EEA Regulations into the Immigration Rules

Post by secret.simon » Thu Aug 30, 2018 12:22 am

I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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